England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Rolls Building, Fetter Lane, London EC4A 1NL
		7/03/2017

Master Bowles :

1. By an amended Claim Form, dated 2^nd February 2016, the Claimant, Paul Wilson (Mr Wilson) sought an order of the court, pronouncing, in solemn form, against the will of his father, Gerald Altiman Wilson (the Deceased), dated and purportedly executed on 9^th October 2010, and revoking the grant of probate obtained by the Defendant, Malcolm Lassman, dated 27^th September 2011, as executor and sole beneficiary under the will. The Deceased died on 18^th December 2010. It is the Claimant's contention that the will was not validly executed in compliance with section 9 of the Wills Act 1837.
2. The Claimant's contention arises in the following circumstances.
3. The Claim, as initially formulated, was a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). Mr Wilson is the son of the Deceased and claimed, under the Act, in that capacity. Mr Wilson did not have a good relationship with his father and moved away from his father's home, at 82 Osborne Road, Forest Gate, in 2000. Although his case is that he kept some contact with his father over, at least, the early years of their separation, the extent of the separation was such that he did not become aware of his father's death until January 2015, some four years after his father's death. By reason of that fact and by reason of the grant of probate in September 2011, Mr Wilson could only proceed with his claim under the 1975 Act if permission is granted by the court; there being a statutory time limit, under the 1975 Act, subject to the court's power of extension, which expired six months after the grant of probate.
4. The deceased's will made no provision for Mr Wilson and left the entirety of his estate to the Defendant, in these proceedings, Mr Lassman, who was, for many years, Mr Wilson's next door neighbour at 84 Osborne Road.
5. The will in question was not prepared by solicitors, but was written, in manuscript, by the deceased on a will form and purportedly attested by two witnesses, Mr William McKinley and Mr John Byrne, who have both given evidence before me. It is not disputed but that the deceased signed the will, nor that the two witnesses also signed the will. Although the attestation clause states that the will was signed by the deceased in the presence of the witnesses and then by the witnesses in his presence, it is not now disputed but that, in fact, the deceased signed his will before presenting it to the witnesses for their signature.
6. Mr Wilson's application for an extension of time to pursue his 1975 Act claim was listed to be heard before me on 27^th January 2016. However, at that hearing, application was made and granted to amend the Claim so as to raise the issue of the validity of the will and of its due execution.
7. The catalyst for that application is to be found in the fact that Mr Wilson, or his solicitors, having, it would seem, doubts as to the proper execution and attestation of the will, had instructed an enquiry agent, who had successfully located the attesting witnesses and questioned them as to the circumstances in which the will had been signed and witnessed. Each attesting witness responded to a questionnaire written up by Mr Wilson's solicitors and signed a witness statement, again prepared by Mr Wilson's solicitors, substantially derived from their responses to the questionnaire.
8. At the hearing, a questionnaire, together with a witness statement produced from the questionnaire, was produced, both signed by Mr Byrne, which appeared to indicate, firstly, that the will had not been signed by the deceased in the presence of the attesting witnesses and, secondly, that, at the time when the first attesting witness signed the will the second attesting witness was not present. On this view, the first attesting witness was, or would have been, Mr Byrne and the second attesting witness Mr McKinley, who was said to have 'arrived with his car' only after Mr Byrne had witnessed the will. If this was correct, in fact, and if this was the totality of the matter, then the will would not have been validly executed and attested in accordance with the Wills Act.
9. Mr McKinley's questionnaire and witness statement (again prepared from the questionnaire, but with some manuscript embellishment by Mr McKinley) did not tell quite the same story. He was, in his witness statement, uncertain as to whether the will had already been signed by the deceased, when presented to him to be witnessed. His questionnaire indicated that he and Mr Byrne had been approached at the same time by the deceased and that Mr Byrne had been with him when he had witnessed the will.
10. In light of the issue raised as to the validity of the will, I took the view that the right course was to determine that question before embarking any further with a consideration of the 1975 Act claim. If the will was invalid, then Mr Wilson would be entitled to at least a share in his father's estate (there is apparently a half brother) and the 1975 Act claim would, in all likelihood fall away. Accordingly, that claim has been stayed pending my determination of the validity of the will.
11. Section 9 of he Wills Act 1837 (as amended) provides, as relevant, that 'No will shall be valid unless (a) it is in writing and signed by the testator … ; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either- (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary'.
12. In this case and as already stated, it is not in doubt but that the deceased signed his purported will. Nor is it suggested that, in signing the will document, his intention was anything other than to give effect to his will. Although, at one stage, Mr McKinley professed to be uncertain as to whether the will had been signed by the deceased before he himself signed the will, it was, ultimately, both his and Mr Byrne's evidence (and not put in contest) that the will had been signed by the deceased before it was submitted to them, or either of them, to be witnessed. In that context, it cannot be in any serious doubt (and, again, was not put seriously in issue), but that, in presenting the signed will to each of them to be witnessed, whether separately, or together, the deceased was acknowledging his signature on the will. The will, as presented, was attested.
13. The issue between the parties, however, is whether, at the point when the deceased acknowledged his signature on the will, he did so in the presence of both witnesses present at the same time, or whether the factual sequence was such that there was never any such acknowledgement to the two witnesses at the time when they were both present with the deceased, as required by the 1837 Act.
14. In determining that issue, there was, before me, some debate as to the burden of proof and the impact, on the facts of this case, of the presumption of due execution.
15. In essence and as explained, in recent times, in such cases as Sherrington v Sherrington [2005] EWCA Civ 326 and Channon v Perkins [2005] EWCA Civ 908, and particularly where the will contains, as this will does, an attestation clause, 'the strongest evidence' is required to rebut the presumption of due execution. As explained both by Lord Penzance, in Wright v Rogers (1869) LR 1 P&D 678 and by Neuberger LJ (as he then was), in Channon, the importance and weight to be attached to that presumption is both principled and practical. It reflects, in terms of practicality, the reality that those attesting a will may well be called upon to recollect the circumstances of execution a very long time after attestation has taken place and where memories of facts which are not, to the attesting witnesses, of any particular importance may well have diminished, or disappeared. In terms of principle, it leans in favour of giving effect to the validity of a will, which, in its turn, gives effect to the testator's intentions, rather than, potentially negating those intentions. As summarised by Lord Penzance, in Wright, at page 682, in the absence of the presumption, 'the greatest uncertainty would prevail in the proving of wills'.
16. All that said, it is perfectly clear that the presumption is not insurmountable. In Wright, itself, Lord Penzance stated, in the passage immediately following that quoted above, that where the witnesses to the will both swear that the will was not duly executed and there is 'no evidence the other way' then there is no basis to be derived from the presumption such as to enable the court to affirm that the will was duly executed. Correspondingly, in Channon, Neuberger LJ posited the situation where a witness recalls that the other witness was not present, or where such a witness recalls that the testator's signature was not on the will when the witness signed and indicated, or suggested, that, in those circumstances, positively contradicting the apparent attestation, the presumption might well not prevail.
17. That view is, as it seems to me, consistent with the view, albeit expressed obiter, of David Richards J (as he then was), in Kayll v Rawlinson [2010] WTLR 1443. In that case, it was common ground that the terms of the attestation clause did not reflect what had, actually, occurred and, in that circumstance, David Richards J considered (but did not formally decide) that, the attestation clause being demonstrably and admittedly incorrect, no presumption of due execution could arise therefrom.
18. In this case, as in Kayll v Rawlinson, it is, in the event, common ground that the attestation clause does not accurately reflect that which occurred. It is not the case and not said to be the case that the will was signed by the deceased in the presence of the attesting witnesses. What is said in evidence by the attesting witnesses and not put in issue between the parties is that the will was already signed by the deceased before being provided by the deceased to the attesting witnesses to sign as witnesses and, therefore, that even if the circumstances of their attestation constitute a valid execution of the will it is a different form of due execution to that asserted in the attestation clause.
19. In those circumstances, I agree, with respect, with David Richards J that the attestation clause cannot give rise to a presumption of due execution. Although the evidence of both attesting witnesses, as discussed later in this judgment, would, if accepted, establish due execution of the will, it would be a different form of due execution, based upon an acknowledgment by the deceased of his signature on the will, before the two witnesses when all three were together, rather than upon the witnesses having witnessed the signature of the deceased, as stated in the attestation clause.
20. Where the evidence said to amount to, or give rise, to due execution of a will, is in conflict with the terms of the attestation clause and where it is common ground that the attestation clause does not accurately reflect the manner in which the will was actually executed and witnessed, it is hard to see how the admittedly incorrect attestation clause can give rise to a presumption of due execution. The presumption of due execution, arising from an attestation clause can only, as I see it, be a presumption of due execution in accordance with the terms of the attestation clause. Where, therefore, it is known and agreed that the attestation clause does not reflect the facts of execution and attestation and where due execution is alleged, as here, on another basis, there can, as I see it, be no room for the application of the presumption. In those circumstances, which are the circumstances with which I am concerned, due execution must be established, by those propounding the relevant will, upon the basis of the proof of due execution of the will in the manner in which it is alleged, by those propounding the will, that due execution actually took place and without the benefit of any presumption in their favour.
21. Accordingly, in this case, where Mr Lassman alleges due execution of the will, the burden is upon him to make good that allegation.
22. The evidence called before me from both the attesting witnesses would, if accepted, establish due execution.
23. Put shortly, the cumulative effect of their evidence, which I take largely from the evidence of Mr McKinley, amounts to this: that, on the 9^th October 2010, Mr McKinley brought his van to Mr Lassman's house, at 84 Osborne Road, in order that Mr Byrne, who works, or then worked, as a car mechanic could carry out repairs to the van. Mr Byrne is a long standing friend of Mr Lassman and Mr McKinley knew Mr Lassman, by virtue of his friendship with Mr Lassman's son. Mr Byrne had arrived first. While Mr Byrne was working on the van, the deceased came out of his house onto his driveway, called, or waved, both of them over on to his driveway and asked them to witness his will. He called out to Mr Byrne by name. Mr McKinley went over into the deceased's driveway and signed the will on the bonnet of the deceased's car. The will was already signed by the deceased. Mr McKinley then passed the will to Mr Byrne and Mr Byrne signed. All three of the deceased, Mr Byrne and Mr McKinley were together throughout this process.
24. If the above account be true and, in particular, if, as alleged, the will, already signed by the deceased was put forward by the deceased, thereby acknowledging his signature on the will, for Mr McKinley and Mr Byrne to witness and if, then, they each, in each others presence and that of the deceased signed and witnessed the will, then the will will have been duly executed and will be valid.
25. The question, therefore, is as to the reliability of the evidence given by Mr Byrne and Mr McKinley, in circumstances where, on the evidence, they signed the will in October 2010 and were not, thereafter, asked about the circumstances of its signing until approached by the enquiry agent in late December 2015.
26. I consider that Mr McKinley was an impressive witness and I regard his evidence as to the events of 9^th October 2010 as being carefully given, reliable and wholly credible. He seemed to me to be an honest and straightforward witness trying to tell me the entire truth. He made it very plain that he wished that he had not become involved, but felt that he had some measure of duty to assist the court. He acknowledged that he had been given £50 by the deceased in return for his assistance in witnessing the will, but felt, strongly, that the inconvenience that he had suffered in having to deal with the matter, given, as set out hereunder, his two meetings with the enquiry agent, and the necessity of having to give evidence, far outweighed that benefit. I received no impression at all (and he robustly denied it, when the matter was put) that Mr McKinley had in any way tailored his evidence to assist Mr Lassman.
27. A suggestion was made, in argument, by Mr Hamilton, counsel for Mr Wilson, that the apparent friendship between Mr McKinley and Mr Lassman's son might have motivated Mr McKinley in giving evidence favourable to Mr Lassman. Set against the evidence I received from McKinley and the manner in which that evidence was given, I regard that suggestion as somewhat far fetched. In further contradiction of that suggestion, or that evidence had been tailored, evidence emerged from Mr McKinley, which I see no reason to disbelieve, that there had been some falling out between himself and Mr Lassman, over some business matter, such that, in the terms of Mr McKinley's evidence, Mr Lassman had been down graded from 'friend' to 'acquaintance'.
28. The witness statement, prepared by Mr Wilson's solicitors, based upon the questionnaires, is a good illustration of the careful approach adopted by Mr McKinley. The statement, ultimately dated 15^th January 2016, had been left by Mr Donovan at the home of Mr McKinley's father. Mr McKinley was not prepared to sign it as drawn, but made a number of changes of detail, including changes that made clear, as in Mr McKinley's evidence to me, that he had been outside Mr Lassman's rather than the deceased's house, when first approached by the deceased but that the actual process of signing and witnessing the will took place outside the deceased's house.
29. Unlike the responses given by Mr Byrne, there was little, if any, inconsistency between the responses that Mr McKinley gave to the private investigator in respect of the original questionnaire and his evidence to the court.
30. In order to deal with the questionnaire, Mr McKinley had agreed to meet the investigator, Mr Donovan, at his home in Bexley. He was critical of the investigator and of the circumstances in which the meeting took place, describing the house as ill lit and in a poor state, and he felt this was particularly disadvantageous to him, given, as he told me, his poor sight and the fact that he has to make use of spectacles with tinted lenses. He explained that, because of the poor lighting, he had been unable to read over the questionnaire.
31. For all of that, the only errors that were contained in the questionnaire, as recorded by the investigator, were to describe his van as a car and to describe him as knowing Mr Lassman since they had been teenagers, whereas, so Mr McKinley told me, he had actually told the investigator that he had known Mr Lassman since he, Mr McKinley, had been a teenager. Importantly, Mr McKinley's responses to the questionnaire, reflected his evidence to me, to the effect that he and Mr Byrne had been approached by the deceased when they were together and while Mr Byrne was servicing his vehicle and that Mr Byrne was with him when he, Mr McKinley, witnessed the will.
32. Mr Hamilton, in his cross examination of Mr McKinley and in argument, took him to task over two matters. Firstly, he queried why Mr McKinley had not, until giving his evidence and although in witness statements given to Mr Lassman's solicitors he had gone into considerable detail, made any mention of the poor lighting conditions and otherwise inadequate circumstances in which he had been called upon to deal with the questionnaire. Secondly and somewhat more significantly, he queried why Mr McKinley had not, until giving witness statements to Mr Lassman's solicitors, mentioned the important fact that Mr Byrne had witnessed the will in his, Mr McKinley's presence and that they had all three (the deceased, Mr Byrne and Mr McKinley) been together when the two attesting witnesses had witnessed the will.
33. As to the first matter, I cannot see that anything turns upon it. Mr McKinley's evidence, as already stated, contains no significant inconsistencies with the answers he gave to the questionnaire that he was asked to consider. The conditions in which he signed the questionnaire are not, on that footing, of any particular relevance.
34. As to the second matter, Mr McKinley acknowledged, very fairly, that it would have been possible for him to make clear, when answering the questionnaire, that he had been with Mr Byrne and the deceased when they had each witnessed the will. He said, however, with some justice, that, when he had been asked to answer the questionnaire, he had no awareness of the details required in proving a will and that he had answered the questions posed in the questionnaire to the best of his ability. The questionnaire had asked whether Mr Byrne had been present when he, Mr McKinley, had witnessed the will. It had not asked whether Mr McKinley had been present when Mr Byrne had witnessed the will, nor, in terms, whether the deceased had been present throughout. It does not seem to me that Mr McKinley can be criticised for not giving answers to questions that were not asked, or that the absence of such answers, at that stage, should cast doubt upon the evidence that he gave when, ulitimately, he was asked to answer the material questions.
35. Put shortly, I see no substance at all in the criticisms, such as they were, made of Mr McKinley and no basis at all for the rejection of his evidence, which I accept as true.
36. The position of Mr Byrne is different. While, given that I am satisfied that Mr McKinley has told me the truth about the execution of the will, I am correspondingly satisfied that the evidence that Mr Byrne gave, at trial, about the execution of the will, and which accorded, in the event, with Mr McKinley's evidence, was, also, true, it is by no means so certain that, taken in isolation, I would have felt able to accept Mr Byrne's evidence.
37. Mr Byrne's evidence to me was not consistent with the answers that he had given to the questionnaire, nor with the statement that he had signed, prepared by Mr Wilson's solicitors and based upon the questionnaire. Contrary to his evidence to me, he had said, both in answer to the questionnaire and in his statement that Mr McKinley had not been present when he, Mr Byrne, had witnessed the will. In the statement, he, apparently, elaborated that answer to the effect that Mr McKinley had arrived with his car subsequent to his, Mr Byrne's, signing the will.
38. Mr Byrne explained this important discrepancy to me upon the basis either that he had misunderstood the question that Mr Donovan, the investigator, had asked him, or that Mr Donovan had not asked the question contained in the questionnaire and to which Mr McKinley had made his reply. According to Mr Byrne, he had understood the question put by the investigator as being a question as to whether Mr McKinley was present when he, Mr Byrne, had arrived at Osborne Road, not the actual question on the questionnaire, namely whether Mr McKinley was present when he, Mr Byrne, witnessed the will.
39. I am not persuaded by that explanation and I think it likely that Mr Byrne did give the answer, from which he now seeks to resile, to the question recorded in the questionnaire and not to the question that he now says that he believes he was asked.
40. Mr Donovan, the investigator, came under a lot of criticism at trial as to the way that he had managed the interviews with Mr Byrne and Mr McKinley at which the questionnaires were dealt with and at which the statements based on the questionnaires had been signed.
41. Criticisms can be made. Mr McKinley, in particular, told me that Mr Donovan had been insistent that he sign his statements there and then, even although Mr McKinley would have preferred to sign a corrected copy. Mr Byrne told me that Mr Donovan told him that, if he signed the prepared statement, he would not have to go to court. I have already recorded the complaint made by Mr McKinley as to the conditions in which he was asked to deal with the questionnaire. Mr Byrne complained that he had been approached by Mr Donovan unannounced on the morning of the day after Boxing Day and at a time when he was only just out of bed and hung over.
42. All that said, Mr Byrne told me that he didn't feel under pressure when dealing with the questionnaire and could, had he chosen, have read over the document. When dealing with his statement, the pressure to get it dealt with (again as Mr Byrne told me) came not from Mr Donovan but from the fact that Mr Byrne had to get away for a medical appointment.
43. What, however, is clear and what I do accept from Mr Byrne is that he had no forewarning of the questions in the questionnaire and, in the case of the statement, no opportunity to consider, at any length, its contents prior to signing. In respect of the questionnaire, in particular, on no view, could it be said that the circumstances were ideal to promote an accurate recollection of events five years earlier.
44. The last foregoing matters leave, as it seems to me, plenty of scope for honest mistake in the responses given to the questionnaire and in the contents of Mr Byrne's statement. The risk of error is compounded by the fact that, as he told me, Mr Byrne was in no mood to read over his answers to the questionnaire and did not, in fact, do so and by the fact that, on the occasion when the statement was signed, Mr Byrne's concern, as stated above, was to get to his medical appointment and, to that end, 'to get rid of' the investigator.
45. All the above matters tend against the reliability of Mr Byrne's answers to the questionnaire and the accuracy of the statement based upon the questionnaire. Where, however, I am not persuaded that Mr Byrne's evidence about those matters is correct is in his purported explanation as to how the answers from which he now resiles came to be made.
46. It is not in doubt but that the questionnaires, both in the case of Mr McKinley and Mr Byrne, were not given to them, or either of them, by Mr Donovan for them to write their responses, but, rather, that Mr Donovan read, or purported to read, the questions in the questionnaire to the witnesses and that it was he and not they who recorded their responses. In regard to Mr McKinley there is no suggestion that Mr Donovan did anything other than read over the questions in the questionnaire, which had been prepared by the solicitors, from whom, ultimately, his instructions derived, in order to elucidate the question of due execution. In that circumstance, it is hard to see any reason why Mr Donovan should have taken a different course in respect of Mr Byrne and should, for no apparent reason, have departed from the script prepared by the solicitors for that purpose and should have chosen, in Mr Byrne's case, but not in the case of Mr McKinley, to ask questions other than those in the questionnaire.
47. I see no reason at all to think that Mr Donovan, contrary to his own evidence, acted in such a way. Mr Donovan told me that he had read over the questions and recorded the answers, adding, where appropriate, such additional comment, or answer, that the witness might have given. That is the impression given by the answers as recorded in the questionnaires. That is what his instructions would have required him to do and that is what, I find, he did do.
48. That leaves open the question of Mr Byrne's possible mistaken understanding of the questions, or possible failure to listen to the questions. That is more possible. It is striking, however, that, although Mr Byrne made two statements to Mr Lassman's solicitors prior to trial, in neither did Mr Byrne proffer the explanation that he chose to advance at trial. The conclusion I draw is that this explanation was untrue and was, in effect, an attempt, by Mr Byrne, to provide a last minute rationalisation of what I find to be the erroneous answer that he gave to Mr Donovan, in response to the questionnaire, and which was then replicated in the statement based upon the questionnaire.
49. I am satisfied, however, that the answer was an error and that the truth of the events of 10^th October 2010 is to be found in the evidence of those events given at trial. I am primarily so satisfied because of the weight that I feel that I can give to Mr McKinley's evidence. I have in mind, also, however, that it has been nowhere suggested, or advanced, that Mr Byrne had any axe to grind in the matter, or was doing anything other, in his evidence of the events of 10^th October 2010, than to seek to tell me the truth of those events. The evidence he gave was not, as was the answer to the questionnaire, a spur of the moment matter, but something that he had every chance to think about and which, for that reason, was more likely to be true.
50. The error, as it seems to me, must have arisen from an initial and, given the circumstances, understandable failure of recollection at the time when the question was first put by Mr Donovan. When the statement based upon the questionnaire was given to Mr Byrne to sign he was in a hurry to get to the hospital and get rid of the investigator. The error was not spotted.
51. Rather, however, than admitting the mistake, Mr Byrne has, as I find, given untrue evidence as to the circumstances in which the mistaken answer was given, in an effort to justify, or explain, the answer. I suspect that the root of the matter lies in embarrassment. The hospital appointment to which I have made mention was an appointment at the memory clinic of the East London NHS Foundation Trust. Mr Byrne, according to the medical evidence placed before me, suffers from memory loss arising from dementia. Not merely, does this explain his mistake, but also explains a very human desire to cover over his mistake.
52. In the result, I am satisfied that the circumstances in which the will was executed and attested are as set out in paragraph 23 of this judgment and, accordingly, that the will of the deceased was properly executed and attested in compliance with statute and is valid. I found my decision upon what I regard as the unimpeachable evidence of Mr McKinley. I consider that the evidence that Mr Byrne gave at the trial as to the events of execution and attestation was also true. I am only able, however, to form that conclusion, in his case, because his evidence at trial, as to those events, is in substantial accord with the evidence of Mr McKinley. In the absence of that evidence and given his medical circumstances and the undoubted weaknesses of his original recollection I would have been very reluctant to found my decision solely upon his recollection and account.
53. Be that as it may, I find that the will is valid and I will make a declaration to that effect.